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FIRST AMENDMENT COALITION v. JUDICIAL INQUIRY & RE

February 1, 1984

The FIRST AMENDMENT COALITION, Frederick J. Huysman and Daniel R. Biddle
v.
JUDICIAL INQUIRY AND REVIEW BOARD



The opinion of the court was delivered by: POLLAK

 This litigation presents challenges, based on the First and Fourteenth Amendments of the Constitution, to certain requirements of confidentiality which govern proceedings of the defendant, the Judicial Inquiry and Review Board of Pennsylvania -- requirements mandated by the Constitution of Pennsylvania.

 I. The Background of This Litigation

 In 1968, as part of a general overhaul of the Pennsylvania Constitution, article V -- the judiciary article -- was extensively revised. Section 18 of the revised article V provided for the creation of a new constitutional entity, the Judicial Inquiry and Review Board. Pursuant to implementing legislation, the Board was established and its nine members appointed -- five judges by the Pennsylvania Supreme Court, and four lawyers and laypersons by the Governor -- in 1969.

 The constitutional mandate of the Board is to receive and inquire into complaints of misfeasance by Pennsylvania state judges and, in any instance in which the Board finds a judge guilty of some significant misconduct, to recommend to the Pennsylvania Supreme Court the judge's "suspension, removal, discipline or compulsory retirement." *fn1" The Pennsylvania Supreme Court is given authority by article V to "review the record of the board's proceedings on the law and facts," to "permit the introduction of additional evidence," and to "order suspension, removal, discipline or compulsory retirement, or [to] wholly reject the recommendation, as it finds just and proper." *fn2" Article V directs that "all papers filed with and proceedings before the board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character." *fn3" Article V also recites that the joint authority of the Board and the Supreme Court to deal with judicial misfeasance "is in addition to and not in substitution for the provisions for impeachment for misbehavior in office contained in article six" *fn4" -- the article of the Pennsylvania Constitution which preserves the time-honored authority of the legislature to remove not only judges but also executive and legislative officials who betray their public trust.

 From its establishment in 1969 up to June 1, 1983, the Judicial Inquiry and Review Board has received 3040 complaints -- the annual filings rising from 44 in 1969 and 67 in 1970 to 168 in the first five months of 1983. *fn5" The initial burden of processing these filings has fallen on Richard E. McDevitt, Esq., Executive Director of the Board, and his modest staff. *fn6" Mr. McDevitt dismisses a large proportion of the complaints outright either because they entirely fail to allege facts constituting misconduct or because they challenge rulings which were made by judges in the course of litigation and which are therefore, subject to judicial oversight by appellate courts. *fn7"

 Very occasionally, the Board's informal investigation and the judge's comments are insufficient to ground a Board determination either to dismiss the charges or, in the alternative, to proceed to the phase of formal accusation. In those rare instances the Board can, pursuant to a 1975 enlargement of its investigative powers, conduct a formal investigative hearing at which the attendance of witnesses and the production of documents can be compelled. *fn10"

 If the Board's investigation -- whether formal or informal -- does not result in dismissal of a complaint, the Board prepares and transmits to the judge formal charges of misconduct. The Board then schedules an adversary hearing conducted by three or more Board members. *fn11" The accused judge is entitled to be represented by counsel. The Board's charges are not presented by Mr. McDevitt or one of his staff but by specially retained counsel. *fn12"

 Out of the 3040 complaints filed with the Board in its fourteen-year history, only eighty-four -- not quite three percent -- have resulted in a Board decision to prefer formal charges. *fn13" Five of these eighty-four proceedings were, as of June 1, 1983, still pending. Of the seventy-nine completed proceedings, seventeen were terminated without a hearing -- mooted by the judge's death, or by the expiration of the judge's term, or, most frequently, by the judge's resignation. *fn14" The Board has held hearings in sixty-two cases. But of these sixty-two cases, only fifty-three have been decided by the Board on the merits; nine of the sixty-two were mooted, prior to Board disposition, by resignation, retirement, or expiration of the judge's term.

 Of the fifty-three cases decided on the merits up to June 1, 1983, forty-one were cases in which the Board found misconduct and filed a transcript of the Board proceedings, together with the Board's recommendation for sanctions, in the Supreme Court. By virtue of article V, section 18(h), of the Pennsylvania Constitution, the filing of the Board transcript and recommendations opened them to public view. In four of those forty-one cases, the Supreme Court rejected the Board's conclusions and dismissed the charges.

 Of the twelve other cases decided by the Board on the merits, five were dismissals which the Board filed in the Supreme Court, thereby making the records public; *fn15" six were dismissals the Board did not file in the Supreme Court; *fn16" and the last was the case which gave rise to this litigation.

 II. The Litigation Before This Court

 The case which gave rise to this litigation was initiated by a complaint against a sitting judge filed with the Board in 1980. In 1981 the Board commenced a formal investigation which resulted in a decision to prefer formal charges. In the late spring of 1982, a hearing panel of the Board began to hear testimony on the charges.

 On May 25, 1982, Daniel R. Biddle -- a reporter for The Philadelphia Inquirer and one of the two individual plaintiffs in this lawsuit -- was served with a Board subpoena requiring his appearance as a witness at the hearing. Two days later, on May 27, 1982, a similar subpoena was served on a reporter for The Pittsburgh Post-Gazette, Frederick J. Huysman, the other individual plaintiff in this lawsuit. The subpoenas advised Messrs. Biddle and Huysman that "by direction of the Constitution of Pennsylvania these proceedings are confidential and any disclosures outside the proceedings shall constitute contempt and be actionable." On May 28, 1982, at the meeting of the hearing panel to which Mr. Biddle had been summoned, Samuel E. Klein, Esq., Mr. Biddle's counsel, sought to clarify the confidentiality requirements embodied in the subpoena. Judge Charles Mirarchi, as Chairman of the hearing panel, acquiesced in the accuracy of Mr. Klein's formulation of what he understood to be the Board's position -- namely, "that Mr. Biddle is precluded from disclosing in any way his own testimony or appearance before this Board." *fn17" After the Board denied Mr. Biddle's motion to quash the subpoena and the Pennsylvania Supreme Court denied an expedited hearing of an appeal filed by Mr. Biddle from the Board's denial of the motion to quash, *fn18" Mr. Biddle testified before the Board, as did Mr. Huysman.

 The Board's proceedings continued on through 1982 and into 1983.

 On February 3, 1983, the present lawsuit was initiated in this court by Messrs. Biddle and Huysman and by the First Amendment Coalition -- a Pennsylvania non-profit corporation comprised of some seventy newspapers, *fn19" associations of journalists and publishers, and television stations. The complaint alleged that the defendant Board had preferred formal charges against a sitting judge and was holding hearings on those charges. The complaint further alleged that the hearings were being conducted behind closed doors, pursuant to article V, section 18(h) of the Pennsylvania Constitution, and that plaintiffs Biddle and Huysman had been subpoenaed as witnesses and enjoined to maintain silence under penalty of contempt. The complaint also recited that:

 
A record is filed with the Supreme Court, and the seal of confidentiality is lifted, only if the Board makes a recommendation to the Supreme Court for the imposition of discipline.

 The complaint further stated that the subject of the charges pending before the Board was Honorable Rolf Larsen, an Associate Justice of the Pennsylvania Supreme Court. The complaint sought (1) a declaration that article V, section 18(h), of the Pennsylvania Constitution, and its implementing statute and rules, are incompatible with the United States Constitution, and (2) an injunction against their continued enforcement. *fn20"

 The Board's answer, filed on March 18, noted that, pursuant to article V, section 18(h), the Board was precluded from responding to the complaint's allegations about a then allegedly pending proceeding. However, the answer denied the allegation that "A record is filed with the Supreme Court, and the seal of confidentiality is lifted, only if the Board makes a recommendation to the Supreme Court for the imposition of discipline." According to the Board:

 
In practice, a record is filed by defendant with the Supreme Court after a hearing is conducted, whether or not the Board recommends the imposition of discipline.

 Thereafter discovery was had, culminating in the deposition, on May 27, 1983, of Board Executive Director McDevitt. At his deposition, Mr. McDevitt testified that the Board had recently determined, pursuant to a legal opinion prepared at Board request by special counsel Perry S. Bechtle, Esq., that article V, section 18(h) of the Pennsylvania Constitution precludes the filing with the Supreme Court of any record of Board proceedings when the Board votes dismissal of charges, since such a filing would make the Board proceedings a matter of public record. *fn21"

 On the same day, the Pennsylvania Supreme Court filed an opinion disposing of a state court proceeding captioned, as this one is, First Amendment Coalition v. Judicial Inquiry and Review Board. The state court proceeding, a mandamus action reported at 501 Pa. 129, 460 A.2d 722 (1983), is closely comparable with this one in that it sought to compel the Board to file in the Pennsylvania Supreme Court, and hence to make public, "the record of its investigation of charges against a member of the judiciary of this Commonwealth." Unlike this proceeding, the one brought in the Supreme Court posed no federal constitutional challenge to article V, section 18(h) of the Pennsylvania Constitution. In dismissing the application for mandamus, the Supreme Court, speaking through Justice Zappala, said, in pertinent part:

 
Petitioners, the First Amendment Coalition and Coalition members, the Philadelphia Inquirer and the Pittsburgh Post Gazette, request that this Court issue a writ of mandamus compelling Respondent Judicial Inquiry and Review Board to file with this Court as a public document the record of its investigation of charges against a member of the judiciary of this Commonwealth. As the Board, a constitutionally independent body, has made no recommendation to this Court of suspension, removal, discipline, or compulsory retirement in this matter, this Court is prohibited by Article V, section 18 of the Pennsylvania Constitution from granting Petitioners' request. Accordingly, the petition is denied.
 
The present action was brought on Friday, May 6, 1983. On Wednesday, May 11, the Board filed a motion to dismiss the petition on the ground that there is no constitutional basis for the filing of the record in a case where the Board has made no recommendation of action, and on the further ground that Petitioner Philadelphia Inquirer had, on Sunday, May 8, 1983, stated in an editorial that it had obtained a full transcript of the proceedings and had begun to publish extensive verbatim excerpts of the transcript. In their answer to the motion to dismiss, Petitioners acknowledged the publication of portions of the transcript by Petitioner Philadelphia Inquirer and the Philadelphia Daily News, another member of Petitioner First Amendment Coalition, but alleged that the transcript was not available to the public or to the other members of the First Amendment Coalition. According to Petitioners, "other members of the Coalition may, if the transcripts were available, publish them verbatim. Others reviewing the transcripts may find that portions unpublished to date are worthy of public notice."
 
Subsection (e) directs the Board to receive complaints and reports, formal or informal, pertaining to matters relating to the suspension, removal, discipline, or compulsory retirement of justices or judges, and to make such preliminary investigations as the Board deems necessary. Should the Board determine that the complaint or report warrants further investigation, it may order a hearing pursuant to subsection (f), after which, if it "finds good cause therefore," the Board is directed by subsection (g) to "recommend to the Supreme Court the suspension, removal, discipline or compulsory retirement of the justice or judge."
 
Pursuant to subsection (h), upon receipt of such a recommendation, the Supreme Court "shall review the record of the board's proceedings on the law and facts and may permit the introduction of additional evidence. It shall order suspension, removal, discipline, or compulsory retirement, or wholly reject the recommendation, as it finds just and proper . . . . All papers filed with and proceedings before the board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character."
 
From the foregoing provisions, it is clear that the Judicial Inquiry and Review Board was created to act as a constitutionally independent body. This Court is authorized to appoint some of the Board's members and to remove those same appointees for cause, but unless and until the Board "recommend[s] the suspension, removal, discipline or compulsory retirement of [a] justice or judge," the Board's decisions are constitutionally its own, and may not be disturbed by this Court, whether the decision be to regard a complaint as unfounded, to conduct a preliminary investigation, to hold a hearing, or, following the hearing, to make no recommendation of action to this Court.
 
The authority conferred upon this Court by subsection (h) to "order suspension, removal, discipline or compulsory retirement, or wholly reject the recommendation" is the only dispositional authority granted to this Court by Article V, section 18 of the Pennsylvania Constitution, and is of course dependent upon the existence of a Board recommendation of action in the first place. If, as in the present matter, a majority of the Board determines that suspension, removal, discipline or compulsory retirement is not warranted, there is no recommendation of action for the Board to make and thus no constitutional authority for this Court to review the record and act. The matter is constitutionally closed. Absent a Board recommendation of action, an order such as that sought by Petitioners, directing the Board to file the record of its proceedings with this Court, would clearly be violative of the constitutional division of authority between the Supreme Court and the independent Judicial Inquiry and Review Board. *fn22"

 This court granted the Board's motion to amend its answer. And this court denied a motion to intervene filed by Robert B. Surrick, Esq., a lawyer who is a member of the Board. Mr. Surrick's motion asserted that he believes to be "improper," and "in violation of the First Amendment," the new policy of not filing in the Supreme Court the records of Board proceedings in which the Board votes to dismiss charges. The denial of the motion to intervene was predicated on Mr. Surrick's lack of standing.

 Now before this court are cross-motions for summary judgment.

 III.

 In conjunction with responding to plaintiffs' motion for summary judgment and pressing its own cross-motion, the Board has urged that both the motion and the cross-motion need not be -- indeed, should not be determined on the merits. The proper disposition of the case -- so the Board has urged -- is dismissal of the complaint in conformity with the principle of abstention announced in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). The Board has pointed to a case filed in the Pennsylvania Commonwealth Court raising the question whether the Board should be compelled to surrender to another state agency a transcript of the very Board proceedings lack of access to which has been the catalyst of this federal case. The Board contends that the question of the availability of the transcript may be resolved in the state courts on state law grounds, in a way which would moot this federal constitutional challenge to the Pennsylvania Constitution's mandate of confidentiality of Board proceedings.

 The state court proceeding whose pendency the Board perceives as obviating disposition on the merits of this federal lawsuit had its inception in a subpoena served by the Pennsylvania Crime Commission on Richard McDevitt, as Executive Director of the Board, on June 18, 1983. The Crime Commission is a statutory body charged by the legislature with the duty to conduct "inquiries into organized crime . . . and . . . public corruption . . . ." *fn23" The Crime Commission's subpoena sought production of "the entire record of all proceedings including, but not limited to, testimonial transcripts and documents of the Judicial Inquiry and Review Board's investigation and hearings in the matter of Justice Rolf Larsen." When Mr. McDevitt declined to comply with the subpoena, the Crime Commission petitioned the Commonwealth Court for an order of enforcement; and the Board moved to quash the subpoena. The Board challenged the subpoena both as being out of conformity with state procedural requirements and as being incapable of enforcement by virtue of the mandate of confidentiality imposed on the Board by article V, section 18(h) of the Pennsylvania Constitution. The Crime Commission joined issue with the Board. But, in so doing, the Crime Commission did not argue to the Commonwealth Court, as plaintiffs have argued here, that article V, section 18(h), of the Pennsylvania Constitution transgresses a federal constitutional guarantee.

 On December 28, 1983, the Commonwealth Court, speaking through President Judge Crumlish, dismissed the Crime Commission's petition for enforcement and granted the Board's motion to quash. Judge Crumlish held that the investigative authority conferred on the Crime Commission by the legislature could not prevail against the injunction of confidentiality with respect to Board proceedings imposed by the Pennsylvania Constitution. In rejecting the Crime Commission's contention that "nothing in the Pennsylvania Constitution . . . requires the . . . Board to keep its records of proceedings confidential in cases where the Board does not make a recommendation for disciplinary action," Brief of the Pennsylvania Crime Commission, p. 5, Judge Crumlish found controlling the Pennsylvania Supreme Court's decision in First Amendment Coalition v. Judicial Inquiry and Review Board, reinforced by its companion decision in In the Matter of Petition of the Pennsylvania Bar Association and Frank B. Boyle, 501 Pa. 127, 460 A.2d 721 (1983), *fn24" that the Board is, under the Pennsylvania Constitution, wholly independent of Pennsylvania's courts except when the Board makes a finding of judicial misconduct and recommends that the Supreme Court impose sanctions. Since the Board had made no such finding and recommendation with respect to Justice Larsen, and had decided not to file in the Supreme Court a transcript of the hearings it conducted on the charges against the Justice, Judge Crumlish concluded that the question of release of the transcript was, as Justice Zappala had held for the Supreme Court, "constitutionally closed." *fn25" Judge Crumlish was, however, at pains to point out that the Crime Commission is free to conduct its own independent inquiry into matters canvassed by the Board which come within the Crime Commission's statutory purview. And Judge Crumlish added:

 
Charges of manifest misbehavior by a member of the judiciary, particularly a Justice of the Supreme Judicial Authority in this Commonwealth, would seem to cry out for open and full disclosure. By voluntary or mandatory means, the public should be privy to the facts, for only then can it have confidence in the quality of judicial performance. Indeed, if the Judiciary is to ...

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